PART III MILITARY COMMISSION RULES OF EVIDENCE SECTION I GENERAL PROVISIONS

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1 Rule 101. Scope PART III MILITARY COMMISSION RULES OF EVIDENCE SECTION I GENERAL PROVISIONS (a) Applicability. These rules apply in trials by military commissions convened pursuant to the Military Commissions Act of 2006 (10 U.S.C. Chapter 47A) (hereinafter the M.C.A. ). (b) Secondary sources. If not otherwise prescribed in this Manual or these rules, and insofar as practicable and consistent with military and intelligence activities, and not inconsistent with or contrary to the M.C.A. or this Manual, military commissions shall apply: (1) First, the Military Rules of Evidence ( Mil. R. Evid. ), as applied in trials by courts-martial under 10 U.S.C. Chapter 47; (2) Second, the rules of evidence generally recognized in the trial of criminal cases in the United States district courts; and (3) Third, when not inconsistent with subsections (b)(1) and (b)(2), the rules of evidence at common law. Rule 102. Purpose and construction These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, the protection of national security, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. Rule 103. Ruling on evidence (a) Effect of erroneous ruling. Error may not be predicated upon a ruling that admits or excludes evidence unless the ruling materially prejudices a substantial right of a party; and (1) Objection. In case the ruling is one admitting evidence, a timely objection appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the military judge by offer or was apparent from the context within which questions were asked. Once the military judge makes a definitive III-1

2 ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim or error for appeal. (b) Record of offer and ruling. The military judge may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The military judge may direct the making of an offer in question and answer form. (c) Hearing of members. During military commissions, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the members by any means, such as making statements or offers of proof or asking questions in the hearing of the members. (d) Plain error. Nothing in this rule precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge. Rule 104. Preliminary questions (a) Questions of admissibility and procedure generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, the admissibility of evidence, an application for a continuance, whether to protect the identity of a witness, whether to afford protective testimonial procedures to a victim or child witness, or the availability of a witness to testify either at the site of trial or a remote site, shall be determined by the military judge. In making these determinations the military judge is not bound by the rules of evidence, except those with respect to privileges. (b) Probative value conditioned on fact. When the probative value of evidence depends upon the fulfillment of a condition of fact, the military judge shall admit the evidence upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this Manual provide expressly to the contrary. If either party represents to the military judge that fulfillment of the condition may require consideration of classified evidence, the military judge will proceed pursuant to Mil. Comm. R. Evid (c) Hearing of members. Hearings on the admissibility of statements of an accused shall in all cases be conducted out of the hearing of the members. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if the accused so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce III-2

3 before the members evidence probative of weight or credibility. Rule 105. Limited admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly. Rule 106. Remainder of or related writings or recorded statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it, consistent with Mil. Comm. R. Evid III-3

4 SECTION II JUDICIAL NOTICE Rule 201. Judicial notice of adjudicative facts (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known universally, locally, or in the area pertinent to the event or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When discretionary. The military judge may take judicial notice, whether requested or not. The parties shall be informed in open court when, without being requested, the military judge takes judicial notice of an adjudicative fact essential to establishing an element of the case. (d) When mandatory. The military judge shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. (g) Instructing members. The military judge shall instruct the members that they may, but are not required to, accept as conclusive any factual matter judicially noticed. Rule 201A. Judicial notice of law (a) Domestic law. The military judge may take judicial notice of domestic law. Insofar as a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements of Mil. Comm. R. Evid. 201 except Mil. Comm. R. Evid. 201(g) apply. (b) Foreign law. A party who intends to raise an issue concerning the law of a foreign country, the law of an international forum, or the international law of war shall give reasonable written notice. The military judge, in determining such law, may consider any relevant material or source, including testimony of lay and expert witnesses, whether or not submitted by a party or admissible under these rules. Such a determination shall be treated as a ruling on a question of law. III-4

5 SECTION III RULES RELATED TO SELF-INCRIMINATION AND CERTAIN OTHER STATEMENTS Rule 301. Privilege concerning compulsory self-incrimination (a) General rule. No person shall be required to testify against himself at a proceeding of a military commission under these rules. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31, to the extent that either may be invoked in proceedings before military commissions, are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied. Discussion Alien unlawful enemy combatants have a statutory privilege against self incrimination under 10 U.S.C. 948r. Other witnesses, such as United States citizens, may invoke privileges under the U.S. Constitution or Article 31 of the U.C.M.J., to the extent they apply. (b) Standing. (1) In general. Any privilege a witness may have to refuse to respond to a potentially incriminating question is a personal one that the witness may exercise or waive at the discretion of the witness. (2) Judicial advice. If a witness who is apparently uninformed of the privileges under this rule appears likely to incriminate himself or herself, the military judge should advise the witness of the right to decline to make any answer that might tend to incriminate the witness and that any self-incriminating answer the witness might make can later be used as evidence against the witness. Counsel for any party or for the witness may request the military judge to so advise a witness provided that such a request is made out of the hearing of the witness and the members. Failure to so advise a witness does not make the testimony of the witness inadmissible. (c) Exercise of the privilege. If a witness states that the answer to a question may tend to incriminate him or her, the witness may not be required to answer unless: (1) facts and circumstances are such that no answer the witness might make to the question could have the effect of tending to incriminate the witness, or (2) the witness has, with respect to the question, waived the privilege against self-incrimination, or (3) the relevant privilege against self-incrimination does not apply. A witness may not assert the privilege if the witness is not subject to criminal penalty as a result of an answer by reason of immunity, running of a statute of limitations, or similar reason. (1) Immunity generally. In evaluating the sufficiency of a grant of immunity to overcome the privilege exerted by a witness, the military judge shall ensure that the immunity is granted by an appropriate authority and that the grant provides, at least, that neither the testimony of the witness nor any evidence obtained from that testimony may III-5

6 be used against the witness at any subsequent trial other than in a prosecution for perjury, false swearing, the making of a false official statement, or failure to comply with an order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity. (2) Notification of immunity or leniency. When a prosecution witness before a military commission has been granted immunity or leniency in exchange for testimony, the grant shall be reduced to writing and shall be served on the accused prior to arraignment or within a reasonable time before the witness testifies. If notification is not made as required by this rule, the military judge may grant a continuance until notification is made, prohibit or strike the testimony of the witness, or enter such other order as may be required in the interests of justice. (d) Waiver by a witness. A witness who answers a question without having asserted a privilege against self-incrimination and thereby admits a self-incriminating fact may be required to disclose all information relevant to that fact except when there is a real danger of further self-incrimination. This limited waiver of the privilege applies only at the trial in which the answer is given and does not extend to a rehearing or new or other trial, and is subject to Mil. Comm. R. Evid. 608(b). (e) Waiver by the accused. When an accused testifies voluntarily as a witness, the accused thereby waives the privilege against self-incrimination with respect to the matters concerning which he or she so testifies. If the accused is on trial for two or more offenses and on direct examination testifies concerning the issue of guilt or innocence as to only one or some of the offenses, the accused may not be cross-examined as to guilt or innocence with respect to the other offenses unless the cross-examination is relevant to an offense concerning which the accused has testified. Discussion If the accused voluntarily introduces his own prior hearsay statements through the direct examination of a defense witness, but the accused exercises his right not to testify himself at the proceeding, the military judge shall instruct the members prior to the beginning of their deliberations: The accused has the absolute right to testify as a witness or to choose not to testify in this proceeding. That the accused exercised (his)(her) right not to testify should not be held against (him)(her). However, in this case, the accused has voluntarily offered his prior statements as part of (his)(her) defense by eliciting those statements through other defense witnesses. At the same time, the accused, by electing not to testify in the proceeding, has prevented the Government from subjecting those statements to cross-examination. In evaluating the weight to be accorded to the accused s hearsay statements, you may consider the fact that the accused chose not to be cross-examined on those statements and that those statements were not sworn testimony. (f) Effect of claiming the privilege. (1) Generally. The fact that a witness has asserted the privilege against selfincrimination in refusing to answer a question cannot be considered as raising any inference unfavorable to either the accused or the government. III-6

7 (2) On cross-examination. If a witness asserts the privilege against selfincrimination on cross-examination, the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the matters to which the witness refuses to testify are purely collateral. (g) Instructions. When the accused does not testify at trial, defense counsel may request that the members of the commission be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counsel s election shall be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice. Discussion References to the Fifth Amendment of the U.S. Constitution and Article 31 of the U.C.M.J. that can be found in Mil. R. Evid. 301 have been deleted as inapposite. Under the M.C.A., an alien unlawful enemy combatant s privilege against self-incrimination is limited to his testimony before a military commission. See 10 U.S.C. 948r(a). Rule 302. Privilege concerning mental examination of an accused (a) General rule. The accused has a privilege to prevent any statement made by the accused at a mental examination ordered under R.M.C. 706 from being received into evidence against the accused on the issue of guilt or innocence or during sentencing proceedings. (b) Exceptions. (1) There is no privilege under this rule when the accused first introduces into evidence such statements. (2) An expert witness for the prosecution may testify as to the reasons for the expert s conclusions and the reasons therefor as to the mental state of the accused if expert testimony offered by the defense as to the mental condition of the accused has been received in evidence, but such testimony may not extend to statements of the accused except as provided in subsection (1). (c) Release of evidence. If the defense offers expert testimony concerning the mental condition of the accused, the military judge, upon motion, shall order the release to the prosecution of the full contents, other than any statements made by the accused, of any report prepared pursuant to R.M.C If the defense offers statements made by the accused at such examination, the military judge may upon motion order the disclosure of such statements made by the accused and contained in the report as may be necessary in the interests of justice. (d) Noncompliance by the accused. The military judge may prohibit an accused who refuses to cooperate in a mental examination authorized under R.M.C. 706 from presenting any expert medical testimony as to any issue that would have been the subject III-7

8 of the mental examination. (e) Procedure. The privilege in this rule may be claimed by the accused only under the procedure set forth in Mil. Comm. R. Evid. 304 for an objection or a motion to suppress. Rule 303. Degrading questions No person may be compelled to make a statement or produce evidence before any military commission if the statement or evidence is not material to the issue and may tend to degrade that person. Rule 304. Confessions, admissions, and other statements (a) General rules. (1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made. (2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below. (3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule. Discussion This rule tracks 10 U.S.C. 948r, which differs from Mil. R. Evid In determining whether a statement was obtained by use of torture or is the subject of a dispute as to the degree of coercion, the military judge should consider the totality of the circumstances under which the contested statement was produced or obtained. See 10 U.S.C. 948r. (b) Definitions. As used in these rules: (1) Confession. A confession is an acknowledgment of guilt. (2) Admission. An admission is a self-incriminating statement not comprising an acknowledgment of guilt, whether or not intended by its maker to be exculpatory. (3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, torture is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor s custody or physical control. Severe mental pain or suffering is defined as the prolonged mental harm caused by or resulting from: III-8

9 (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality. See 18 U.S.C Discussion (4) Cruel, inhuman or degrading treatment. The cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States. (c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section. (1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence. (2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. Discussion The Detainee Treatment Act, or D.T.A., enacted on December 30, 2005, provides that no individual in the custody or under the physical control of the United States Government shall be subject to cruel, inhuman, or degrading treatment or punishment, as defined by reference to the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, regardless of the nationality or location of the individual. Therefore, the M.C.A. requires military judges in military commissions to treat allegedly coerced statements differently, depending on whether the statement was made before or after December 30, See 10 U.S.C. 948r(c), (d). For statements made on or after that date, the military judge may admit III-9

10 an allegedly coerced statement only if the judge determines that the statement is reliable and possessing sufficient probative value, that the interests of justice would best be served by admitting the statement, and that the interrogation methods used to obtain the statement did not amount to cruel, inhuman, or degrading treatment or punishment prohibited by the D.T.A. If a party moves to suppress or object to the admission of a proffered statement made before December 30, 2005, the military judge may admit the statement if the judge determines that the statement is reliable and possessing sufficient probative value, and that the interests of justice would best be served by admitting the statement. In evaluating whether the statement is reliable and whether the admission of the statement is consistent with the interests of justice, the military judge may consider all relevant circumstances, including the facts and circumstances surrounding the alleged coercion, as well as whether other evidence tends to corroborate or bring into question the reliability of the proffered statement. (d) Procedure. (1) Disclosure. Subject to the requirements of Mil. Comm. R. Evid. 505, prior to arraignment, the prosecution shall disclose to the defense the contents of all relevant statements, oral, written, or recorded, made or adopted by the accused, that are within the possession, custody or control of the Government; the existence of which is known or by the exercise of due diligence may become known to trial counsel, and are material to the preparation of the defense under R.M.C. 701 or are intended for use by trial counsel as evidence in the prosecution case-in-chief at trial. (2) Motions and objections. (A) Motions to suppress or objections under this rule to statements that have been disclosed shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the objection. (B) If the prosecution intends to offer against the accused a statement made by the accused that was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interests of justice. (3) Specificity. The military judge may require the defense to specify, to the extent practicable, the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the taking of a statement or otherwise to obtain information necessary to specify the grounds for a motion to suppress, the military judge may, subject to the requirements and protections of Mil. Comm. R. Evid. 505, make any order required in the interests of justice, including authorization for the defense to make a general motion to suppress or general objection. Discussion Where a party moves to suppress or object to evidence under section (c) on the ground that the degree of coercion is disputed, the military judge may require the party to state with specificity the grounds for the III-10

11 motion or objection before requiring the party proposing the evidence to introduce evidence in support. See, e.g., United States v. Jones, 14 M.J. 700, 701 (N-M. C.M.R. 1982). (4) Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at trial, but no such determination shall be deferred if a party s right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state essential findings of fact on the record. (5) Effect of guilty plea. Except as otherwise expressly provided in R.M.C. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all privileges against self-incrimination and all motions and objections under this rule with respect to that offense regardless of whether raised prior to plea. (e) Burden of proof. When an appropriate motion or objection has been made by the defense under this rule, the prosecution has the burden of establishing the admissibility of the evidence. When a specific motion or objection has been required under subsection (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence. (1) In general. The military judge must find by a preponderance of the evidence that a statement by the accused comports with the requirements of this rule before it may be received into evidence. (2) Weight of the evidence. If a statement is admitted into evidence, the military judge shall permit the defense to present relevant evidence with respect to the voluntariness of the statement and shall instruct the members to give such weight to the statement as it deserves under all the circumstances. (f) Defense evidence. The defense may present matters relevant to the admissibility of any statement as to which there has been an objection or motion to suppress under this rule. An accused may testify for the limited purpose of denying that the accused made the statement or that, under the circumstances, the statement is admissible under this rule. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this section. When the accused testifies under this section, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement. Discussion This rule departs from the Mil. R. Evid. 304(f) so as to comport with 10 U.S.C. 948r. III-11

12 (g) Miscellaneous. (1) Oral statements. An oral confession or admission of the accused may be proved by the testimony of anyone who heard the accused make it, even if it was reduced to writing and the writing is not accounted for. (2) Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement, consistent with the provisions of Mil. Comm. R. Evid Discussion Mil. Comm. R. Evid. 304 contains no requirement for corroboration for admission of an inculpatory statement by the accused (compare Mil. R. Evid. 304(g)); however, in determining the probative value and reliability of such a statement, the military judge may consider the degree of corroboration, if any. Rule 306. Statements by one of several accused When two or more accused are tried at the same trial, evidence of a statement made by one of them which is admissible only against him or her or only against some but not all of the accused may not be received in evidence unless all references inculpating an accused against whom the statement is inadmissible are deleted effectively or the maker of the statement is subject to cross-examination. III-12

13 SECTION IV PROBATIVE EVIDENCE AND ITS LIMITS Rule 401. Scope of probative evidence in military commissions Evidence has probative value to a reasonable person when a reasonable person would regard the evidence as making the existence of any fact that is of consequence to a determination of the commission action more probable or less probable than it would be without the evidence. Rule 402. Evidence having probative value to a reasonable person generally admissible All evidence having probative value to a reasonable person is admissible, except as otherwise provided by these rules, this Manual, or any Act of Congress applicable to trials by military commissions. Evidence that does not have probative value to a reasonable person is not admissible. Rule 403. Exclusion of probative evidence on grounds of prejudice, confusion, or waste of time The military judge shall exclude any evidence the probative value of which is substantially outweighed: (1) by the danger of unfair prejudice, confusion of the issues, or misleading the commission; or (2) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes (a) Character evidence generally. Evidence of a person s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a pertinent trait of character of the alleged victim of the crime is offered by an accused and admitted under Mil. Comm. R. Evid. 404(a)(2), evidence of the same trait of character, if relevant, of the accused offered by the prosecution; (2) Character of the alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide or assault case to rebut evidence that the alleged victim was an aggressor; (3) Character of witness. Evidence of the character of a witness, as provided in III-13

14 Mil. Comm. R. Evid. 607, 608, and 609. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, that upon request by the accused, the prosecution shall provide reasonable notice in advance of trial, or during trial if the military judge excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Rule 405. Methods of proving character (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of an offense or defense, proof may also be made of specific instances of the person s conduct. (c) Affidavits. The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this section, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules. (d) Definitions. Reputation means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. Community includes, but is not limited to, a town, city, tribal area, and as to the armed forces also includes post, camp, ship, station, or other military organization regardless of size. Rule 406. Habit; routine practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Rule 410. Inadmissibility of pleas, plea discussions, and related statements (a) In general. Except as otherwise provided in this rule, evidence of the following is III-14

15 not admissible in any military commission proceeding against the accused who made the plea or was a participant in the plea discussions: (1) a plea of guilty that was later withdrawn; (2) any statement made in the course of any judicial inquiry regarding the foregoing pleas; or (3) any statement made in the course of plea discussions with the convening authority, legal advisor, trial counsel or other counsel for the Government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (A) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (B) in a military commission proceedings for perjury or false statement if the statement was made by the accused under oath, on the record and in the presence of counsel. (b) Definitions. A statement made in the course of plea discussions includes a statement made by the accused solely for the purpose of requesting disposition under any authorized alternative procedure for release from United States custody or other action in lieu of trial by military commission; on the record includes the written statement submitted by the accused in furtherance of such request. Rule 412. Nonconsensual sexual offenses; relevance of victim s behavior or sexual predisposition (a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving alleged sexual misconduct, except as provided in sections (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim s sexual predisposition. (b) Exceptions. In a proceeding under this chapter, the following evidence is admissible, if otherwise admissible under these rules: (1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and III-15

16 (3) evidence the exclusion of which would adversely affect the integrity or fairness of the proceeding. Discussion Mil. Comm. R. Evid. 412(b)(3) departs from Mil. R. Evid. 412(b)(3) insofar as the constitutional standard reflected in the latter does not apply here. Mil. Comm. R. Evid. 412(b)(3) nonetheless permits the military judge to ensure that evidence is admitted where the exclusion would adversely affect the integrity or fairness of the proceeding. (c) Procedure to determine admissibility. (1) A party intending to offer evidence under section (b) must (A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and (B) serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim s guardian or representative. (2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer probative evidence. The victim must be afforded a reasonable opportunity to attend and be heard. In a case before a military commission, the military judge shall conduct the hearing outside the presence of the members pursuant to R.M.C The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the commission or a superior court orders otherwise. (3) If the military judge determines on the basis of the hearing described in subsection (2) of this section that the probative value of the evidence that the accused seeks to offer outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or crossexamined. (d) For purposes of this rule, the term sexual behavior includes any sexual behavior not encompassed by the alleged offense. The term sexual predisposition refers to an alleged victim s mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the members. (e) A nonconsensual sexual offense is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, sexual assault, sexual abuse, and attempts to commit such offenses. III-16

17 Rule 413. Evidence of similar crimes in sexual assault cases (a) In a military commission in which the accused is charged with an offense of sexual assault, evidence of the accused s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it has probative value to a reasonable person. (b) In a trial by military commission in which the Government intends to offer evidence under this rule, the Government shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 20 days before the scheduled date of trial, or at such later time as the military judge may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule, offenses of sexual assault means an offense punishable under titles 10 or 18 of the United States Code, or any similar offense arising under the laws of any nation or under international law or the law of war that involved (1) any sexual act or sexual contact, without consent, proscribed by the law applicable to the site of that act or contact; (2) contact, without consent of the victim, between any part of the accused s body, or an object held or controlled by the accused, and the genitals or anus of another person; (3) contact, without consent of the victim, between the genitals or anus of the accused and any part of another person s body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subsections (1) through (4). (e) For purposes of this rule, the term sexual act means: (1) contact between the penis and the vulva or the penis and the anus, and for purposes of this rule, contact occurs upon penetration, however slight, of the penis into the vulva or anus; (2) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (3) the penetration, however slight, of the anal or genital opening of another by a III-17

18 hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (4) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. (f) For purposes of this rule, the term sexual contact means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. III-18

19 SECTION V PRIVILEGES Rule 501. General rule (a) A person may not claim a privilege with respect to any matter except as required by or provided for in: (1) The Constitution of the United States, as applicable; (2) An Act of Congress applicable to trials by military commissions; (3) These rules or this Manual; or (4) The principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to Rule 501 of the Federal Rules of Evidence, insofar as the application of such principles in trials by military commissions is practicable and not contrary to or inconsistent with the M.C.A., these rules, or this Manual. (b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any matter; (3) Refuse to produce any object or writing; or (4) Prevent another from being a witness or disclosing any matter or producing any object or writing. (c) The term person includes an appropriate representative of the Federal Government, a State, or political subsection thereof, or any other entity claiming to be the holder of a privilege. Rule 502. Lawyer-client privilege (a) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or the client s representative and the lawyer or the lawyer s representative, (2) between the lawyer and the lawyer s representative, (3) by the client or the client s lawyer to a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client. III-19

20 (b) Definitions. As used in this rule: (1) A client is a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer. (2) A lawyer is a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the armed forces detailed, assigned, or otherwise provided to represent a person in a military commission case or in any military investigation or proceeding. The term lawyer does not include a member of the armed forces serving in a capacity other than as a judge advocate, legal officer, or law specialist, unless the member: (A) is detailed, assigned, or otherwise provided to represent a person in a military commission case or in any military investigation or proceeding; (B) is authorized by the armed forces, or reasonably believed by the client to be authorized, to render professional legal services to members of the armed forces; or (C) is authorized to practice law and renders professional legal services during off-duty employment. (3) A representative of a lawyer is a person employed by or assigned to assist a lawyer in providing professional legal services. (4) A communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. (c) Who may claim the privilege. The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer s representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary. (d) Exceptions. There is no privilege under this rule under the following circumstances: (1) Crime or fraud. If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; III-20

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